Sudhir Chandra Verma, J. - (1.) THE present petition under Article 226 of the Constitution has been filed both by the out -going tenant and his wife, who became prospective allottee. By this petition the order dated 18 -7 -1987 passed by the Fourth Additional District Judge, allowing the revision of the landlord and setting aside the order of Rent Control and Eviction Officer dated 1 -5 -1987 rejecting the application of the landlord for release of the disputed accommodation have been challenged. Thus by the impugned order the release application of the landlord under Section 16(1)(b) of the Act, has been allowed. The facts giving rise to the present dispute are that the respondent No. 2 is landlord of the disputed premises No. 198, Civil Lines, Bareilly. The petitioner No. 1 Sri R.S. Misra, was posted as Deputy Collector and the said portion was allotted to him. On his transfer to Jhansi the Rent Control and Eviction Officer by his order dated 8 -11 -1976 declared the premises as vacant. The respondent No. 2 filed release application dated 13 -10 -76 and the wife of the petitioner No. 1 Smt. Premlata Misra, being petitioner No. 2, applied for allotment of the disputed premises.
(2.) THE Rent Control and Eviction Officer by order dated 31 -1 -1977 allotted the disputed portion in favour of Smt. Prem Lata Misra, Petitioner No. 2. The application for release was not disposed of before passing of the allotment order in favour of Smt. Prem Lata Misra. The landlord challenged the order dated 31 -1 -1977 in Rent Control Revision No. 41 of 1977 which was allowed by VIth Additional District Judge, Bareilly, by order dated 15 -11 -1977 and the order dated 31 -1 -1987 was set aside. The case was remanded to the Rent Control and Eviction Officer for deciding the release application first before passing the order of allotment. After the remand of the case the Rent Control and Eviction Officer held that the disputed portion can not be deemed to be vacant and the order declaring it to be vacant was bad in law as Sri R.S. Misra was transferred in December. 1975, and by that time sub -section (3 -A) of Section 12 of the Act was not added. The declaration of the vacancy by virtue of sub -section (3 -A) to Section 12 of the Act by order dated 5 -8 -1976 was not in accordance with the law, and, as such, there was no vacancy and there would be no question of consideration of the release application of the landlord or allotment to Smt. Prem Lata Misra. This order was again challenged in Rent Control Revision No. 148 of 1978.
(3.) LEARNED District Judge. Bareilly after considering the provisions of sub -section (3 -A) of Section 12 of the Act and the provisions of Section 12 of the Act held that the tenant had substantially removed his affects and he has taken up residence at Jhansi where a house was allotted in pool Housing Scheme. It would not lie in the mouth of the tenant to allege that there was no vacancy and it was too late for the Rent Control and Eviction Officer to hold that the house can not be declared vacant. Learned Judge after considering the need of the landlord set aside the order of the Rent Control and Eviction Officer dated 1 -5 -1978 and allowed the release application by order dated 15th October, 1980.;